2017 (5) TMI 355
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....-. This return was revised on 4.5.2006 and assessment order under section 143(3) of the Act was passed on 25.3.2008 whereby total income of the assessee was determined at Rs. 25,20,66,051/- and book profit was determined at Rs. 116,76,19,194/-. The AO, thereafter recorded reasons and reopened assessment. Notice under section 148 was issued and served upon the assessee on 30.3.2012. At this stage, we do not deem it necessary to recite and recapitulate other facts relating to reassessment order passed by the AO. It is suffice to say that reassessment order was passed on 26.2.2014. 4. It is pertinent to mention here that the assessee had challenged reopening of the assessment by way of writ petition before the Hon'ble Gujarat High Court in Special Civil Application No.2965 of 2013. The Hon'ble High Court took cognizance of this petition and passed interim order on 18.3.2013. The order reads as under: "Notice returnable on 1.4.2013. Respondents may continue with assessment, final order pursuant to the impugned notice shall not be passed without leave of the Court." The Hon'ble Court ultimately disposed of this writ petition on 29.7.2013. The assessee took objection before the AO an....
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....d in the case of CIT Vs. Chandra Bhan Bansal, 46 taxmann.com 108 (All.). He placed on record copies of these decisions. He further contended that the Hon'ble Allahabad High Court has also considered this aspect in the case of CIT Vs. Dr. X-Ray & Pathology Institute P. Ltd., 40 taxmann.com 115 (All). The ld.counsel for the assessee further pointed that all relevant details have been reproduced by the ld.CIT(A). No comments are required from the AO. The assessee has submitted details in tabular form exhibiting date of issue of notice under section 148, date of interim order passed by the Hon'ble High Court and date of final order passed by the Hon'ble Court. In this connection, he took us through written submissions of the assessee and made reference to the relevant part at page nos.5 to 7 of the CIT(A)'s order. He further pointed that two decisions referred by the ld.CIT-DR are concerned, facts are quite distinguishable. In those case, the Hon'ble Court has propounded that period during which assessment proceeding is stayed shall be excluded. The assessee is not disputing this proposition. It has also excluded that period. The only dispute between the assessee and the AO is whether ....
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.... calculating the period of limitation [Explanation 1 to S. 153(4)]. 3. Thus, the time limit within which reassessment order u/s. 143(3) r. w. s. 147 as per sec. 153(2) r.w.s. proviso to sec. 153(4) is to be passed is 27-09-2013. 4- The Assessing Officer has erred in passing the reassessment order on 26-02-2014 and hence, the same is void-ab-initio. Submissions: 1. Firstly all the relevant dates of proceedings are mentioned as under: Sr. No. Particulars Dates 1 Date of issuing notice u/s 148 30/03/2012 2 Date on which notice u/s 148 was served on the Appellant 30/03/2012 3 Stay order passed by the Gujarat High Court against Writ Petition filed by the Appellant 18/03/2013 4 Final order passed by the Gujarat High Court and stay vacated against Writ Petition filed by the Appellant 29/07/2013 5. /4 Assessment order passed by the Assessing Officer u/s 143(3) r.w.s. 147 26/02/2014 2. We enclose herewith the following documents to substantiate e above at Page 1 to Page 5 of the paperbook: Notice issued u/s 148 * Stay order passed by the Gujarat High Court against Writ Petition filed by the Appellant * Final order pass....
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.... from the date on which interim relief was granted by the High Court till the date of vacation of relief by the High Court will be excluded. Subsequently, the High Court with oral judgment order dated 29th July, 2013 permitted the Assessing Officer to proceed with the reassessment proceedings on the first ground raised in reasons recorded for reassessment. Thus, the period from 18th March 2013 to 29th July 2013, i.e.134 days will be excluded in calculating the period of limitation [Explanation 1 to S. 153(4)]. 7. Hence, the Assessing officer had to pass the order within 13 days from 29th July, 2013 (date when High Court vacated the stay). However, as per 1st proviso to Explanation 1 to 153(4) if after vacation of stay the time period remaining to pass an order is less than sixty days it will be extended to sixty days. The relevant extract is produced herein below: "Provided that where immediately after the exclusion of the aforesaid time or period, the period of limitation referred to in subsections (1), 65[(1A), (IB),] 66[(2), (2A) and (4)] available to the Assessing Officer for making an order of assessment, reassessment or recomputation, as the case may be, is less than si....
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....e of knowledge of the dismissal of such writ petition to the assessee or AO is immaterial particularly when the decision was pronounced in open Court. Further an affidavit in reply was also filed by the Departmental Representative on 21st June 2013. This shows that the Departmental Representative was aware of the court proceedings. Hence there was no requirement for the Assessing Officer to wait for the communication of the High Court order as with the passing of the order, the stay as provided by the Hon'ble High Court came to an end. The date of communication of order would be irrelevant." 8. A perusal of the above details would indicate that 194 days are available to the AO from 29.7.2013. But he passed the assessment order after more than 200 days. The AO was of the opinion that time limit for passing the assessment order would commence from the date of communication of the order. It has been observed that this order was communicated to him on 14.2.2014 and he was to pass an order within 60 days from this date. Accordingly, he has passed it on 26.2.2014. But this interpretation of the Explanation (1)(ii) appended to section 153(1) has not been approved by the ld.CIT(A). T....